State v. Green

• Court: Oregon Court of Appeals
• Area(s) of Law: Evidence
• Date Filed: 07-27-2016
• Case #: A154814
• Judge(s)/Court Below: Flynn J. For the Court; Duncan P.J. & Lagesen, J.

Under Article I, section 11 of the Oregon Constitution, it may be a violation of the right to counsel to prevent an individual from consulting with his attorney prior to taking a Intoxilyzer test if the officer is within earshot of the attorney or his receptionist.

The defendant appealed his conviction for driving under the influence of intoxicants (DUII) and alleged error in the trial courts denial of his motion to suppress the Intoxilyzer breath test results. On appeal, the court looked into whether the defendants right to consult with his counsel was denied when he tried to consult with his counsel before consenting to take the test. The court found that since the officer was within earshot of the attorney’s receptionist, the state needed to rebut the presumption the the officer affected the exercise of right to counsel under the Article I, section 11, of the Oregon Constitution. The evidence was suppressed. Reversed and remanded.

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